Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1283 (MP)

Chanchal Mistri (Smt. ) v. Asha Bhati

2009-11-18

N.K.MODY

body2009
ORDER N.K. Mody, J. 1. Being aggrieved by the judgment dated 21.1.2009 passed by Sessions Judge, Dewas in Cr.A. No, 236/08 whereby the judgment dated 28.11.2008 passed by JMFC, Dewas in Criminal Complaint No. 1285/08 whereby the petitioner was held guilty for an offence punishable under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as an "Act") for a period of two years SI, was modified by converting the jail sentence into fine of Rs. 5,00,000/-, the present petition has been filed. 2. Short facts of the case are that the respondent filed a private complaint on 6.5.2008 against the petitioner under Section 138 of the Act alleging that the respondent entered into an agreement to purchase plot No. 93, situated at Junior Agroha Nagar, Dewas, which was owned by the petitioner vide agreement dated 1.1.2008 for a consideration of Rs. 7,21,000/-. It was alleged that in consideration of the agreement respondent paid a sum of Rs. 1,60,000/- to the petitioner on 1.1.2008 and a sum of Rs. 2,00,000/- on 28.2.2008. It was further alleged in the complaint that it was agreed between the parties that the balance amount of Rs. 3,61,000/- shall be paid by the respondent to the petitioner on or before 10.3.2008 at the time of execution of sale deed in favour of respondent. It was alleged that the respondent went to the petitioner on 10.3.2008 along with the balance amount of Rs. 3,61,000/-. It was alleged that at that time petitioner informed that petitioner is cancelling the contract and returning the amount of Rs. 3,61,000/- vide cheque coated 27.3.2008 of Bank of India. It was alleged that upon receipt of the cheque the same was deposited by the respondent for collection, but the same was returned with an endorsement to the effect "insufficient funds". It was alleged that the notice was issued to. the petitioner wherein the demand was made. It was further alleged that notice was sent to the petitioner, but the same was not received in spite of receipt of intimation. It was alleged that petitioner has committed an offence which is punishable under Section 138 of the Act. It was prayed that after taking cognizance petitioner be convicted. 3. After filing of the complaint, learned Trial Court took the cognizance of the offence and issued the notices to the petitioner. It was alleged that petitioner has committed an offence which is punishable under Section 138 of the Act. It was prayed that after taking cognizance petitioner be convicted. 3. After filing of the complaint, learned Trial Court took the cognizance of the offence and issued the notices to the petitioner. After securing the presence of the petitioner and also after framing of charge and recording of evidence, petitioner was convicted for a period of two years SI. Against which an appeal was preferred by the petitioner, whereby the judgment passed by the learned trial Court was modified by converting the jail sentence into fine of Rs. 5,00,000/-, against which present petition has been filed. 4. Learned Counsel for the petitioner argued at length and submits that petitioner has convicted illegally while petitioner has not committed any offence. Learned Counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this revision. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. Learned Counsel submits that the conviction be set aside. 5. Learned Counsel for the respondent submits that after due appreciation of evidence both the Courts below have found the petitioner guilty for the aforesaid offence. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. It is submitted that the petition filed by the petitioner be dismissed. 6. In the matter of Kumar Exports v. Sharma Carpets I (2009) BC 392 (SC) : I (2009) CCR 100 (SC) : III (2009) BC 259 (SC) : (2009) 2 SCC 513 , Hon'ble Apex Court has observed that presumption under Sections 118 and 139 come into existence as soon as the complainant proves that negotiable instrument was executed by the accused, however, these presumptions are rebuttable. It was further observed that rebuttal does not require proof beyond reasonable doubt. The Hon'ble Court has further observed that the accused in a trial under Section 138 of the Act has two options. It was further observed that rebuttal does not require proof beyond reasonable doubt. The Hon'ble Court has further observed that the accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as it expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non-existences of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of the passing of the consideration and existence of debt, apparently does not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by considering or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling the burden may likewise shift again on to the complainant. The accused may also rely upon presumption of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumption arising under Sections 118 and 139 of the NI Act. 7. The accused may also rely upon presumption of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumption arising under Sections 118 and 139 of the NI Act. 7. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue, 8. In the matter of T. Nagappa v. Y.R. Murlidhar II (2008) CCR 398 (SC) : III (2008) DLT (Crl.) 19 (SC) : 2008(4) MPLJ 455, Hon'ble Apex Court has held that right created in the holders of the instrument to complete incomplete negotiable instrument is subject to the conditions mentioned in Section 20 of the N.I. Act whereby prima facie authority is granted inter alia, to complete negotiable instrument. 9. To prove the case the respondent has filed and proved the cheque Ex. P.1 which is dated 27.3.2008 for a consideration of Rs. 3,60,000/-. Ex. P.2 is the memorandum issued by the Bank on the same date wherein the reason assigned is insufficient balance. Ex. P.3 is demand notice while Ex. P.4 is the UPC receipt and Exs. P.5 and P.6 are the receipts of registry, while Ex. P.8 and P.9 are the registered letters which has returned unserved with a postal remark to the effect that time completed. Apart from this, the respondent has given her statement on affidavit and she was thoroughly cross-examined by the petitioner. Except respondent there is no other evidence adduced by the respondent. 10. From perusal of the record, it appears that there are certain important aspects of the case which were not taken into consideration by the learned Courts below which are as under: (a) Ex. P.1 is the cheque which bears the signature of the petitioner in English and bears an endorsement in English to the effect "account payee". 10. From perusal of the record, it appears that there are certain important aspects of the case which were not taken into consideration by the learned Courts below which are as under: (a) Ex. P.1 is the cheque which bears the signature of the petitioner in English and bears an endorsement in English to the effect "account payee". Apart from the endorsement and signature, rest of the contents of the document is in Hindi. (b) In the complaint it is mentioned that the cheque was sent by the respondent for collection through its Banker Punjab National Bank. There is no memorandum produced by the respondent which was issued by Punjab National Bank. The memorandum alleged to have been issued by the Bank of India is dated 27.3.2008 and it is not on the requisite proforma. Ex. P.2 also appears to be Photostat copy of the memorandum alleged to have been issued by Bank of India. (c) In her cross-examination the respondent has stated that she does not remember the exact location of the plot of which the talk took place between the parties for purchase. She has also not stated the exact price for which it was agreed between the parties to sale out the plot. (d) In para 8 of her cross-examination she has stated that at the time when the deal was finalised relating to purchase of plot, husband of the respondent was present along with respondent. She has also stated that at that time respondent paid a sum of Rs. 1,60,000/- in cash. She has further stated that the agreement to sale the plot was with the petitioner. She has further stated that the agreement was executed on a stamp paper and the respondent was possessing the copy of it. She has further stated that after cancellation of the transaction she has destroyed the copy of the agreement. The husband of the respondent has not been examined who was the eye-witness of payment of Rs. 1,60,000/-. Ordinarily the agreement remains in possession of the purchaser, no reason has been assigned by the respondent how the agreement was in possession of the petitioner. (e) Again no reason has been assigned by the respondent that when the transaction was denied, why the respondent destroyed the copy of the agreement when she did not receive the money which was paid by the respondent as earnest money. (e) Again no reason has been assigned by the respondent that when the transaction was denied, why the respondent destroyed the copy of the agreement when she did not receive the money which was paid by the respondent as earnest money. (0 In para 9 of her statement the respondent has stated that she has withdrawn Rs. 10,000/-or Rs. 20,000/- from the Bank of which the exact figure is not remembered by the respondent. In this regard no documentary evidence is produced that any amount was withdrawn by the respondent from the Bank on the relevant dates. (g) In para 9 of her cross-examination the respondent has further stated that she has taken loan from her relatives. She has further stated that she does not remember the name of the relatives and the amount which was taken as loan. She has further stated that before entering into an agreement to purchase the plot she has not seen the original deeds. She has slated that she has seen the photostat copy. The reason assigned by the respondent is that respondent was in thick relation with the petitioner. (h) The respondent has further stated in her cross-examination that she doss not remember who brought the stamp upon which the agreement was executed. She has stated that at the time of execution of agreement respondent, her husband, petitioner's husband and brother in-law of the respondent Narendra Bhati was present. The brother in-law of the respondent was important witness who has not been examined by the respondent. (i) In para 10 of her cross-examination she has stated that she docs not remember whether the cheque Ex. P. 1 was filled in or blank. She has also stated that she does not remember that who has filled in the cheque. (j) In para 11 of her cross-examination the respondent has admitted that the notice was duly replied by the petitioner which is Ex. P.2. In the reply notice which was issued by the petitioner it has been stated that the petitioner and the respondent are the neighbourers and are residing in one colony since last 20 years. It is stated that the petitioner is having Cosmetic shop from where the respondent is purchasing the articles. It was also stated that the husband of the respondent is working in Housing Board. It is stated that the petitioner is having Cosmetic shop from where the respondent is purchasing the articles. It was also stated that the husband of the respondent is working in Housing Board. It is denied that a forged document has been prepared by the respondent for snatching the money from the petitioner. 11. Thus, right from beginning a definite stand was taken by the petitioner that the cheque was never issued by the petitioner. From the effective cross-examination made by the petitioner, the presumption which was in favour of respondent was rebutted. In the facts and circumstances of the case it was the duty of the respondent to adduce further evidence to the effect that in fact an amount of Rs. 1,60,000/- and a sum of Rs. 2,00,000/- were paid by the respondent to the petitioner on 1.1.2008 and 28.2.2008. For proving this fact the respondent could have adduced relevant documents of the concerned Bank from where the amount was withdrawn and also could have examined the relatives from whom the loan was taken. The respondent could have examined her husband and her brother in-law in whose presence the agreement was executed and the amount was paid, but for the reasons best known to. the respondent, all these facts were not proved. Apart from this no documentary evidence was proved to show that the petitioner was possessing any plot for which an agreement was executed between the parties. 12. In the facts and circumstances of the case, this Court is of the view that the learned Courts below committed error in passing the impugned judgment whereby the petitioner was convicted for an offence punishable under Section 138 of the N.I. Act. 13. In view of this, the petition filed by the petitioner is allowed and the impugned judgment passed by the learned Courts below is set aside. The petitioner stands acquitted.